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A. State Substantive

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While rooted in English common law, American substantive criminal law is statutory. There are no common law crimes in the United States. In other words, the law of crimes is promulgated by the state legislatures (for each state) and by Congress (for the federal government). Most states, but not the federal government, have a comprehensive 'code' of substantive criminal law made up of general principles of criminal responsibility, laws defining the particular criminal offenses, and laws defining excuses and justifications. Criminal sentences, which are discussed later, are also prescribed by Congress and the state legislature.

The state legislatures can promulgate whatever criminal laws they like for their respective jurisdictions, subject only to federal and state constitutional limitations. Thus, for example, neither Congress nor a state legislature can pass a criminal law that punishes free speech because that would violate the First Amendment. The United States Constitution places a few other restrictions on the nature of substantive criminal law. For example, due process requires that criminal offenses be written, available and sufficiently definite so that the citizenry has notice of what conduct has been proscribed. The ex post facto clause (as against the federal government) and the due process clause (as against the states) prohibits applying criminal law to conduct that was innocent when it was performed. State constitutions may also impose certain additional restrictions on the legislature's authority to promulgate criminal offenses.

Two-thirds of the states have adopted in whole or in part the Model Penal Code (MPC) which was drafted in the 1950s and 1960s by the American Law Institute, a prominent law reform organization. The MPC is the most influential work in American substantive criminal law. Its general principles cover:

(1) the purposes of the criminal law;

(2) rules governing interpretation of the code;

(3) allocation of evidentiary burdens of proof; and

(4) the requirement that punishment be proportional to the gravity of the offense.

The bulk of the MPC is devoted to general rules of criminal responsibility (e.g. culpability, causation, accomplice liability, mistake of fact, and mistake of law); specific definition of crimes (e.g. murder, assault, drug trafficking), and excuses and justifications (e.g. necessity, public duty, and duress).

One of the most deeply-rooted principles in American criminal law is that there can be no criminal responsibility without culpability or blameworthiness. Under the MPC, culpability, sometimes referred to as 'mens rea' or 'state of mind', is satisfied by a showing of intent, knowledge, recklessness, or negligence, all of which are carefully defined by the Code. Except in the case of minor offenses and some regulatory crimes, the MPC requires that there be a specified 'culpability' for every element of an offense (conduct, attendant circumstances, result).

Criminal codes set out the prohibitions that constitute the law of crimes— offenses against the person (e.g. murder and rape); offenses against property (e.g. theft and arson); offenses against public order (e.g. disorderly conduct and rioting); offenses against the family (e.g. bigamy and incest); and offenses against public administration (e.g. bribery and perjury). In general, American criminal law 'grades' offenses into several different 'degrees' based upon culpability and extent of harm. For example, homicide is graded into two large categories, murder and manslaughter and, in many jurisdictions, those categories are subdivided into the specific offenses of first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. Similarly, most United States criminal codes contain several degrees of robbery, burglary, larceny, sale of drugs and so forth. The grade of offense affects either the sentence maximum, minimum, or both. Thus, the work of apportioning punishment is divided between the substantive law of crimes and sentencing law.

One of the most unusual features of American (as well as English) substantive criminal law is the law of conspiracy which, among other things, has been used in most 'political trials' and in most organized crime trials. The law of conspiracy makes it a crime to agree with another person to engage in criminal conduct. Thus, conspiracy, like the law of attempts, punishes people for conduct that falls short of a completed offense. All that needs to be proved is that the defendant agreed to commit a criminal act in the future and that any member of the conspiracy took a step in furtherance of the plan. The agreement need not have been explicit or formal; nor is it required that all the co-conspirators agreed with one another as long as they agreed with one of the conspirators to further the goal of the conspiracy.

In a political sense, conspiracy refers to a group of persons united in the goal of usurping or overthrowing an established political power. Typically, the final goal is to gain power through a revolutionary coup d'йtat or through assassination.

Under federal law, defendants can be convicted and punished for both the completed crime and for conspiracy to commit that crime. In addition, federal law makes each conspirator an accomplice in every offense committed by co-conspirators in furtherance of the conspiracy. Members of the same conspiracy can be joined at a single trial. Commentators have frequently criticized the law of conspiracy as amorphous and vague and for, in effect, allowing guilt by association. The MPC's provision on conspiracy reins in the doctrine somewhat.

Although the federal system and a few states rely on common (court-made) law for justifications and excuses, most state criminal codes include statutorily defined excuses and justifications, including self defense; necessity; duress; public duty; involuntary intoxication, and insanity. Self defense is the most often used defense, and it has generated a substantial jurisprudence, comprised of judicial interpretations of statutes, concerning such questions as immediacy, proportionality, and the duty to retreat.

The most controversial defense is the insanity defense, although it is used only infrequently and rarely successfully. Under the MPC, '[a] person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law'. A few states have abolished the insanity defense altogether. A number of other states have eliminated the 'lack of capacity to conform' prong of the insanity defense, thereby returning the law to the state that it was in when the English court first announced the insanity defense in the famous McNaughten case.


Insanity has to be specially pled and, if successful, results in a 'not guilty by reason of insanity' verdict. (A few states have recently added a new plea and verdict—'guilty but mentally ill'—which results in a judgment of guilty and a recommendation for psychiatric treatment within the penal system.) Historically, a defendant found 'not guilty by reason of insanity' was committed indefinitely to a mental hospital. The defendant could remain longer in the mental institution than a prison sentence would have required had he been convicted of the offense. The Supreme Court, however, has sharply restricted the terms under which a person can now be held involuntarily in a mental institution. The 'not guilty by reason of insanity' verdict in the case of John Hinckley, who attempted to assassinate President Ronald Reagan, led Congress to pass a federal insanity defense for the first time. (Previously each federal circuit court defined the appropriate insanity doctrine for that circuit.) It provides:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

At the heart of the jurisprudential debate about the insanity defense is a basic conflict between the meaning of insanity to the psychiatrist and its criminal law role in excusing a defendant from criminal responsibility. The various formulations of the insanity defense provide greater or lesser freedom for psychiatrists, testifying as expert witnesses for both sides, to explain their diagnosis of the defendant's mental condition at the time of the offense. Many lawyers and psychiatrists argue that the goal of the criminal justice system—to assess blame and mete out punishment—is fundamentally incompatible with the goal of the mental health system, which is to diagnose and treat. According to the critics, in criminal trials involving an insanity defense, the lawyers and the psychiatrists speak different languages. The problem is exacerbated by American criminal procedure which permits each side to call its own expert witnesses; the prosecution's psychiatrist tells the jury that the defendant was not insane at the time of the offense, and the defense's psychiatrist testifies that he was insane.

In recent years, a great deal of attention has been paid to a spate of so-called 'abuse excuses' like battered woman's syndrome, abused child syndrome, post traumatic stress disorder, and so forth. These excuses have been put forward either (1) as a form of the insanity defense; (2) to establish a self defense rationale; or (3) to mitigate the degree of culpability through a general diminished capacity defense. The battered woman's defense has achieved a degree of success. Many courts permit expert testimony on this syndrome because of its relevance to the defendant's subjective belief in the necessity of defensive force.

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